13 Chapters
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6 Fear and Exhaustion

Howard H. Lewis Indiana University Press ePub

6

Fear and Exhaustion

Prior to Reading, my workweek would consist of the normal five days plus a half day on Saturday. I’m not an early person, and would arrive at the office at about nine thirty, intentionally missing the early morning phone calls, which gave me the option of returning only the ones I wanted to. I usually didn’t leave until around six, getting home around seven thirty for drinks and dinner with my wife, Maxine (the kids, Rudy and Howard, often ate earlier, though we all ate together on the weekends). I took the usual holidays off: Christmas, Easter, Memorial Day, the Fourth of July, Labor Day, and even Thanksgiving, though for reasons peculiar to my family situation, that one was more a chore than a pleasure, involving two large family meals with too much food and too little real conversation. I was able to take, usually in two segments, about a month of vacation, which mattered more to me than weekends and holidays. Though not the most involved father in the world, I still enjoyed being with my kids, and my wife’s company was a constant pleasure.

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9 The Rail Use Case: Ours and the Government’s

Howard H. Lewis Indiana University Press ePub

9

The Rail Use Case: Ours and the Government’s

It was essentially the transferors’ burden to demonstrate the value of their properties in continued rail service. The government’s primary contention, by contrast, was that absent Congressional action expressed in the Rail Act, the railroads in the Northeast would simply have disappeared, replaced by trucks on a much expanded highway system, ships on an enhanced intercoastal waterway, increased air freight, and I guess snowshoes. The government believed its role was counterpunching, that is, demonstrating that our contention would not have worked and that our properties would be largely ignored by profitable roads, or at best bought for a pittance no greater than what they would have yielded in liquidation for nonrail use.

My approach of beginning at the end of the case by imagining oral argument had the advantage of focusing my mind and the work product it developed, so that I didn’t range over a mass of fact and speculation trying to find the compelling argument emerging from the jumble like weeds sprouting in a yard. Admittedly, it had the disadvantage of limiting inquiry, so that I might well overlook a big piece of evidence which a less structured, more open investigation might have revealed. The truth is, however, I really had no choice, since the timetable set by the court effectively precluded any kind of full-range inquiry given the limited resources available to me and my own physical capacity.

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11 End Game

Howard H. Lewis Indiana University Press ePub

11

End Game

In the fall of 1980, as we finished the cross-examination of the government’s witnesses, we all turned to writing our briefs, though I, and I think many others, had already started drafting portions of what we wanted to present. Since the court had heard no testimony and had not been given the written evidence, let alone the discovery and cross-examination transcripts, both our cases and the government’s consisted entirely of these briefs and the excerpts of evidence each side wanted to present in the form of appendices. Our briefs were due on January 12, 1981, and the government’s some six weeks later. In the midst of the frenzied assembly of the summary of six years of intense work which consisted of the careful sifting and organizing of the mass of evidence and forming it so that it told a coherent story, two cataclysmic events occurred.

First, Ronald Reagan was elected president, and Drew told us all that he was quitting as trustee to become secretary of transportation. In short, he was switching from being our leader to leading the opposition. The problems of conflict of interest—of how we could get an unbiased hearing before the court or even the appearance of an unbiased hearing—appalled me. I tried as much as I could, since we were never really intimate, to urge him to take another post. “How about Commerce,” I said. “You have an extraordinary record as a business doctor, a fixer of troubled companies. Or how about Treasury—you at least can read a balance sheet, which is more than many of your predecessors could do.”

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8 The Times That Try Men’s Souls

Howard H. Lewis Indiana University Press ePub

8

The Times That Try Men’s Souls

The meetings we had of counsel for all the transferors, where we sat around trying to feel each other out, did not occur in a vacuum. Prior to our getting together, the Special Court had made a strong suggestion as to what it did and did not wish to hear, and we had already had the two rounds of briefing and oral argument described above, one on the constitutional minimum value and the other on the unconstitutional erosion. It was clear at this point that if the public remained the buyer, the price it would have paid was limited; perhaps, as the court suggested, it might have paid original cost less depreciation and deterioration (OCLDD), but reconstruction new was out of the question. At any rate, our first line of attack had to be to value the operating properties as an operating profit-making enterprise, not as a public service, or, if valued as a public service, as a key ingredient in an overall rail transportation network. The net result of this conclusion led all but one of us to make up a hypothetical universe in which there were a number of buyers competing for our properties, and, with respect to a public buyer, a number of competitors to provide the service offered by the railroads.

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3 A Time of Waiting

Howard H. Lewis Indiana University Press ePub

3

A Time of Waiting

Following the 1974 opinion came a time of waiting and regrouping during which nothing much happened of a formal nature until the government produced the Final System Plan as required by the Rail Act. During that period, however, we set about preparing for the oncoming deluge. One obvious question was who was going to try the case in the almost certain event that the government’s offer of compensation proved to be inadequate. I remember receiving a telephone call from Paul Duke, then head of Penn Central’s in-house legal department, asking what firm was going to try the Reading’s case and who would be the lead litigator. I replied, “Well, Paul, I guess we are and I am.”

There was a stunned silence. “Howard, I always thought of you more as a business lawyer. Have you had much litigation experience?”

“None whatever.”

“I see. Well, we’re going with the very distinguished firm of Covington and Burling in Washington with their superb Litigation Department.”

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